Gen. 343] 343

STATE’S ATTORNEYS

SOVEREIGN IMMUNITY ) TORT CLAIMS ) STATE’S ATTORNEYS

ARE NOT SUBJECT TO THE MARYLAND TORT CLAIMS ACT

October 13, 1993

Kirk G. Simpkins, Esquire

County Attorney for Somerset County

You have requested our opinion whether a State’s Attorney is

subject to the Maryland Tort Claims Act. For the reasons stated

below, we conclude that a State’s Attorney is not subject to the Tort

Claims Act. 

I

Background

Your question arises because officials for Somerset County are

considering whether to include the State’s Attorney in their liability

insurance under the Local Government Insurance Trust, an insurance

pool. Counsel to the Trust has advised that under the applicable law,

Article 48A, §482B of the Maryland Code, and the trust agreement,

a county’s participation in the pool does not automatically include

the State’s Attorney’s Office in its liability coverage. However, a

participating county may name an eligible public entity, such as the

State’s Attorney, in its primary coverage so long as the named entity

is subject to the Local Government Tort Claims Act or the Maryland

Tort Claims Act. 

Although counsel has evidently concluded that the State’s

Attorney is not subject to the Local Government Tort Claims Act,

recent amendments to the Maryland Tort Claims Act have created

uncertainty whether the State’s Attorney is subject to that Act.

Accordingly, it has been suggested that the Attorney General be

asked for an opinion on this issue. See Letter of January 15, 1992
344 [78 Op. Att’y

 Provisions of §40 pertaining to particular counties were amended

1

by Chapters 116, 182, and 248 of the Laws of Maryland 1993. Chapters

116 and 182 both took effect July 1, 1993, and Chapter 248 takes effect

October 1, 1993. The obligation of local governments to fund the State’s

Attorney’s Office was the subject of an opinion issued in 1989. See 74

Opinions of the Attorney General 263 (1989). 

 As the Court pointed out, the Local Government Tort Claims Act, 2

§§5-401 through 5-404 of the Courts and Judicial Proceedings Article

(“CJ” Article), specifically includes only certain agencies that are

ordinarily regarded as State agencies; the implication, therefore, was that

other State entities and officials, such as sheriffs and their deputies, were

excluded. Rucker, 316 Md. at 293-94. 

from David M. Funk of Shapiro and Olander to Larry C. Bradley,

Risk Manager of the Local Government Insurance Trust. 

II

Tort Claims Act Converage

The office of State’s Attorney in each of the counties and

Baltimore City is established by Article V, §7 of the Maryland

Constitution. See Murphy v. Yates, 276 Md. 475, 488, 348 A.2d 837

(1975). State law requires the respective local governments to fund

this office. Article 10, §40. Nonetheless, the State’s Attorney has 1

generally been regarded as a State, rather than local, official. See

Valle v. Pressman, 229 Md. 591, 185 A.2d 368 (1962).

In Rucker v. Harford County, 316 Md. 275, 558 A.2d 399

(1989), the Court of Appeals considered the question you have posed

with respect to the sheriff, whose position as a State official was said

to be analogous to that of the State’s Attorney. 316 Md. at 285-86.

The Court held that the sheriffs and their deputies were covered by

the Maryland Tort Claims Act, Title 12, Subtitle 1 of the State

Government Article (“SG” Article). The Court based its decision 2

on a provision in SG §12-101, which at the time defined “State

personnel” for purposes of the Maryland Tort Claims Act to include

“an individual who, with or without compensation, exercises a part

of the sovereignty of the State.” 316 Md.at 297-98. In the Court’s

view, this provision clearly covered a sheriff and sheriff’s deputies,

and the fact that a sheriff’s office is funded by local government was
Gen. 343] 345

no basis for excluding such personnel. 316 Md. at 298-300. The

Court also suggested that the State’s Attorneys and various other

officials would likewise be covered under the same provision. 316

Md. at 300.

In its opinion, which was issued June 9, 1989, the Court noted

that the General Assembly had enacted legislation at the 1989

Session to revise SG §12-101. Because the amendment was not

effective until July 1, 1989, however, and because no argument was

based on the revised provision, the Court did not consider it.

Rucker, 316 Md. at 298 n. 11. 

The law to which the Court referred, Chapter 413 of the Laws

of Maryland 1989, amended SG §12-101 to declare that State

officials “paid in whole or in part by the Central Payroll Bureau” of

the Comptroller’s Office are “State personnel.” SG §12-101(1).

The 1989 enactment also deleted the phrase “with or” from the

portion of the definition of “State personnel” that had included “an

individual who, with or without compensation, exercises a part of

the sovereignty of the State.” SG §12-101(4). After the amendment,

an individual who exercised a portion of the sovereignty of the State

and who was paid to do so was encompassed by the Tort Claims Act

only if the payment came from the State’s Central Payroll Bureau. 

Because this definition was the basis of the Court’s conclusion

that sheriffs and their deputies ) as well as other locally paid State

officials, like State’s Attorneys ) were subject to the Maryland Tort

Claims Act, the result of the deletion was to exclude from the

Maryland Tort Claims Act such locally compensated officials as

sheriffs and State’s Attorneys and thus to overrule this aspect of

Rucker. Although these officials surely exercise a part of the State’s

sovereignty, they do not do so “without compensation.” Further,

they are not paid by the Central Payroll Bureau. Hence, they were

not “State personnel” as the definition read after the enactment of

Chapter 413.

In its next regular session, the General Assembly amended SG

§12-101 once again to expressly include “a sheriff or deputy sheriff”

in the definition of “State personnel.” Chapter 508, Laws of
346 [78 Op. Att’y

 Although the 1990 enactment made sheriffs and their deputies 3

subject to the Maryland Tort Claims Act, it also made the respective local

governments responsible for paying judgments, subject to certain

exceptions.

Although the State’s Attorneys do not enjoy the immunity afforded 4

by SG §12-105 and CJ §5-399.2(b), they may be able to invoke other

immunity defenses. See generally 77 Opinions of the Attorney General

198 (1992). 

Maryland 1990. See SG §12-101(6). However, the General 3

Assembly considered and rejected the inclusion of State’s Attorneys

and their deputies. Report of Senate Committee on Judicial

Proceedings on S.B. 813 and Senate Journal for the 1990 Session

1855-58. The clear implication of the exclusion in 1989 of locally

compensated individuals exercising the State’s sovereignty, and the

express inclusion in 1990 of sheriffs and their deputies, is that

State’s Attorneys and their deputies are not subject to the Maryland

Tort Claims Act. See generally Allied Vending, Inc. v. City of

Bowie, No. 108, September Term, 1992, slip op. at 26-27 (Sep. 17,

1993). 

4

III

Conclusion

In summary, it is our opinion that a State’s Attorney is not

subject to the Maryland Tort Claims Act. 

J. Joseph Curran, Jr.

Attorney General

Richard E. Israel

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice